Columnist Chris Silver Smith takes a look at what could be a recent policy shift in Google's longstanding informal policy of granting court-ordered defamation removal requests.

A number of attorneys who specialize in online defamation/libel cases have reported to me that Google has recently suspended its longstanding, informal policy of removing URLs from US search results that are specified in duly executed court orders. This poses a major paradigm shift for many victims of online reputation attacks.

Beginning around August or September of this year, a number of attorneys from across the US began receiving blanket denials after submitting requests to remove defamatory content from Google’s search results.

Since at least 2009, Google has had an informal policy of accepting many removal requests when accompanied by a properly executed court order specifying defamatory/libelous content at specific URLs. I’ve personally seen a number of cases where hundreds and even thousands of URLs have been submitted with court orders, and Google has removed those URLs from search results.

But they’ve now stopped. Not for every single request, but for a sufficient number that it’s clear something has changed.

Background: Search engines immune to libel removal demands

It’s worthwhile to note that search engines, and various other types of online sites and services, were made immune in the United States from liability for things like defamation/libel by Section 230 of the Communications Decency Act (“CDA”). For hundreds of years of established law, publishers (such as of books and newspapers) could be held responsible for content published through them.

With the advent of the internet age, it was initially unclear how some types of websites should be categorized — were they publishers, and should therefore be held directly accountable for defamatory content, or were they merely distributors of others’ content, similar to libraries and bookstores, and should therefore not be considered liable for their content? There were concerns that categorizing all types of sites as publishers would potentially have a depressing effect on innovation and business in the nascent internet.

As the Digital Media Law Project states, in 1996, Congress elected to clarify any ambiguity and to simultaneously provide protection for many types of sites by legally defining them as not being publishers:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Most courts have held that through these provisions, Congress granted interactive services of all types, including blogs, forums, and listservs, immunity from tort liability so long as the information is provided by a third party.

Google’s help page for requesting removal of content cites Section 230 of the CDA for US users:

Despite this signpost that outright states, “Google does not remove allegedly defamatory material from our search results…”, in practice, Google has long chosen to act upon court orders and removed libel and defamation from the search results (legally speaking, court orders identifying such content makes it no longer “allegedly”).

For victims damaged by false statements online, Google’s de facto policy of removing defamation from their results has been a godsend.

Google alters its policy around defamation removal requests

I spoke with multiple attorneys specializing in online defamation across the country, and they all report similar responses from Google recently where the company declined to act on requests to remove URLs listed in court orders. The responses for these included a brief statement reading:

“At this time, Google has decided not to take action.”

It’s not unusual for Google to sometimes push back on such requests in instances where a court order is not specific enough, where the legal work has been sloppy or where URLs are incorrect. But the current denial responses do not appear to be due to those types of protocol mistakes.

Some requests appear to be still undergoing reviews and consideration, and some related to prior removals appear to be still pending consideration. The door to defamation removals may not be completely closed. But some requests are simply being declined with no indication as to why. And they are the sorts of requests that were previously being reliably removed.

Why has Google decided to halt this practice?

We reached out to Google, but they have chosen not to make any official statement at this time. I’ve been informed that Google may still elect to act upon court-ordered libel/defamation removal requests if they choose, on a case-by-case basis. As their help page established, they consider themselves not legally obligated to do so.

For the professionals who assist companies and individuals with legal removals, the lack of explanation around the apparent policy-shift or process-shift is very disturbing, and makes it difficult to convey reasonable expectations to defamation victims. And, in many cases, lack of action on Google’s part will create greater hardship for victims, or will even eliminate any real recourse at all.

The abrupt change in policy has invited a lot of speculation.

I know from multiple past discussions with various search engine company insiders that they consider removals to be undesirably costly, and that materials published on others’ websites are not particularly their responsibility. Quoting what one insider once told me, “This is a project that does not make money for the company, and does not save money for the company, so it is a low priority.”

Electing to not take action on defamation removal requests seems in line with this. They are a business, and should not necessarily be motivated purely out of altruism, according to this line of thinking.

It is undoubtedly costly. Google processes thousands of URL removal requests and maintains staff dedicated to all types of legal removal reviews.

Removal requests may also be philosophically troubling in many instances. According to their Transparency Report, many removal requests citing defamation originate from government agencies and law enforcement. (Albeit, it seems likely that many of these removal requests may originate from countries that do not have as strong freedom-of-speech laws as found in the United States.)

Perhaps Google is halting many US defamation removals to make a statement against censorship, here at the tail end of what could be the most rancorous political race in the world’s history.

It’s undoubtedly upsetting for fair-minded employees to be in the position of sometimes removing URLs that critique governments and politicians for countries where it may be deemed illegal to say negative things about officials. But this does not seem to explain what is going on here, since the requests being submitted do not appear to be unfair attempts to censor, but rather malicious and untrue attacks on individuals and companies.

Another explanation could be due to revelations from earlier this year that some unethical attorneys and reputation agencies have abused Google’s removal process and perhaps committed fraudulent actions in the process.

In the spring, Pissed Consumer reported that a number of suspicious lawsuits with purportedly bogus defendants were filed in California courts to obtain defamation court orders enabling URLs to get delisted by Google. In October, Pissed Consumer sued a reputation management company and attorneys that are alleged to be behind “sham lawsuits” and “stooge defendants” that were used to fool Google into removing undesirable consumer reviews.

It seems likely that the revelations around these abuses may have factored into the company’s decision to decline to act on some removal requests. Could it be that Google is now applying some more restrictive requirements around court orders that it will accept in the wake of the unethical manipulation?

Possibly. But, having reviewed some of these requests, I don’t see sloppiness or commonalities with the sorts of things that Pissed Consumer has complained of. If motivated by the abuses alleged by Pissed Consumer, Google could merely be starting to demonstrate that they are autonomous in their decisions about whether or not to remove something.

For the attorneys and their clients who are now failing to procure intervention on the part of Google after they have gone through ofttimes-lengthy and costly litigation processes, the abrupt apparent change in policy and lack of explanation are upsetting and confusing. Is this shift temporary? Should they continue to submit the requests again later? Should they modify the requests in some way? Does Google desire different verbiage in court orders now?

Google is currently silent on the matter. But the statements that Google will not take action may be communicating all that victims may now expect: Your removal requests may be futile.

Should search engines be immune from defamation removal demands?

To a very large degree, search engines have become the internet. If something is not indexed by Google or Bing, or it isn’t searchable and prominent within the search engines, it might as well not exist.

When people are seeking information about a subject, they turn to search engines. So, if the listings on the first page or two of search results contain false, negative and damaging items about a subject, this is where people are often most likely to encounter them. The search engines are the starting point, the gateway to the internet.

Being able to remove results directly from Google largely snaps the connection between the public and the libelous/defamatory content. This option has been the best path for obtaining relief for many victims in terms of comprehensiveness and speed.

Google’s suggestion that one should seek relief by going directly to a webmaster to get the damaging content removed at the source will not work for victims in many cases. If the originating site is also immune under the CDA, then one may not be able to get materials removed, and they will live on in the search results.

Consider Ripoff Report — a site that allows people to post any claims, false or otherwise, about individuals and companies, but does not allow people to subsequently delete what they wrote. Ripoff Report’s policy is to never remove materials, even where one has court orders establishing that content is completely false and defamatory.

Heretofore, one could obtain a court order to present to Google (read the definitive article on the subject, “How To Remove Ripoff Reports From Google — Not Just Bury Them“). Where sites like Ripoff Report are concerned, Google’s willingness to remove URLs with court orders has been the only source of relief available. The Section 230 protections of the CDA have resulted in many similar situations where no one may be legally required to correct or remove misleading and harmful materials.

In yet other cases, websites hosted in foreign jurisdictions may also be beyond the reach of victims based in the US; the internet is a global economy, and without a global solution for false and damaging libel, people simply can become harmed in perpetuity.

Few victims can afford to hire attorneys in other countries where defamation may be hosted, and some other countries may not provide the legal protections established through hundreds of years of tradition and precedent that are found in western countries. (Ironically, a person with dual US/EU citizenship might be able to legally require Google to remove damaging materials from being viewed by searchers within Europe, but not from searchers located within the United States.)

If the only solution available is to take court orders to the websites where defamatory materials are published and persuade them to remove the stuff, then costs increase for victims, as their attorneys or online reputation agencies must go to many sites to remove stuff, rather than to a single source.

I’ve seen multiple cases where defamatory content was spread across hundreds and even thousands of URLs. Instead of communicating with one entity, representatives must go to many, monitor them to see if they comply and follow up when they don’t.

Inevitably, removal of defamatory content will also take longer if Google does not assist. Even if you persuade an originating website to remove something, the listing for it and cached version of the page can live on in Google’s search results for months or even years, continuing to damage one’s reputation. (Professionals may also circle around to ask Google’s automated system to remove the URL due to the page being removed, or one may request the Googlebot to respider the page to update the cached copy to eliminate removed content.)

The human cost

Most people do not feel strongly about online reputation attacks. That is, until their own reputations become impacted by some negative things.

Those of us who work on these sorts of cases are aware that everyone is vulnerable to significant damage from misrepresentation. Many have a notion that they are good people, and therefore do not expect to have their reputations attacked in any way. But it only takes one obsessed customer. One crazy ex-girlfriend/boyfriend. One disgruntled employee.

Once someone libels you on the internet, there’s a very good chance that the materials may find their way up on the first page of search results. Many people make the mistake of thinking that if they avoid having much about themselves on the internet, their reputation and privacy are protected. But privacy and reputation are separate and frequently unrelated entities. So, when something negative gets published into the mix, it can abruptly become prominent.

Imagine you’re the brilliant doctor who is falsely accused of malpractice. You are the business accused of being a scam and cheating your clients. You’re falsely accused of doing shoddy work. You’re accused of being a Mafia collaborator, a Nazi sympathizer, a pedophile, a nymphomaniac, a rapist or an adulterer. (This isn’t merely melodramatic hyperbole on my part — I’ve worked on cases where people were falsely accused online of each of these things.)

When the lie is the thing that defines your identity, then you lose business, your company fails, and you cannot make new relationships. It can affect everything about your life.

Defamation victims experience deep depression and sometimes consider suicide. Due to the frequency of psychological distress associated with online reputation issues, I interviewed a psychologist, and I refer my reputation clients to them. This stuff takes an extremely heavy toll on people. I’ve had clients who genuinely feared going out to restaurants because they had been accosted by people who had read and believed misrepresentation posted online about them.

In a completely opposite direction last year, Google announced that they would accept removal requests for revenge porn — without even a court order being required. However, a number of porn revenge victims I’ve assisted had instances of defamatory written statements on various web pages in addition to images and videos published to harm them. So, ironically, Google’s current policy shift will make it so that these victims can theoretically get their images taken out of search with just a note to Google, while related defamatory written content might not be removed, even with a court order.

If this new paradigm becomes status quo, the attorneys expert in these matters will likely halt assisting new clients, because there will be no way to reasonably predict positive outcomes, and risk of failure will be too high. If you’re defamed on Ripoff Report, which has over two million reports posted, you’ll be out of luck. Your only recourse in that case may be to change your name, as Google’s Eric Schmidt once infamously suggested. So, defamation victims in the future may find less legal representation available to assist them.

In multiple cases I’ve worked on, reputation attack victims were subjected to extortion. They were threatened that if they did not pay or do something demanded, then an individual would ruin their reputation online by posting falsehoods or private information about them. When they did not pay up, the extortionist followed through, harming them severely.

By revoking recourse to have defamatory listings removed, Google will be effectively enabling more criminally minded people to use the search engine’s inflexibility as part of their extortion schemes. Google’s policy change is exposing the large legal loophole created by the CDA: One may launch terrifically damaging materials, and those can rocket up in visibility and never be removed.

Companies threatened by this may decide to simply pay up, rather than risk having to shutter, go bankrupt or lay off employees. It’s satisfying to have extortionists arrested and convicted, but from a business point of view, it’s a losing proposition if you can’t undo the evil damage that has torpedoed your company.

If you’ve witnessed the costs for a company with a well-established brand name to change that name, you’ll know that this can be extensive and risky — replacing all signs, logos on letterheads, business cards, products, websites — all while losing the equity and recognition built in the name. I’ve also had a porn revenge victim that elected to change their name; it’s not an easy process, fraught with all sorts of issues you can’t foresee, and very difficult to explain to all who have known you by your original name.

So, there’s nothing simple about a name-change, and one may not have the necessary amount of money on hand to even make that work.

Is Google liable? Or could the immunity of the CDA be revoked?

I’ve long thought that Google chose to act upon defamation removal requests out of a desire for self-preservation. I thought it was a calculated strategy both to avoid risks of legislature removing some of the immunity provided by Section 230 of the CDA and to reduce lawsuits that they might have to face from desperate people. The immunity provided by the CDA is a huge value to Google, and processing of defamatory removal requests is a relatively small price to pay.

It’s possible for the legislature to modify the Section 230 protection. As I described above, it has enabled situations where horribly damaging false content can be published, and there’s no effective way to help the victims.

It’s possible for legislators to wake up to this and to try to address the lacuna in the current laws. I think all it might take would be a handful of defamed children of congressmen and senators, and legislators might become very motivated to take action.

There is also the fact that the largest search engines are quite different in nature than smaller forum operators, and even the social media services. The search engines are not the equivalent of small libraries or booksellers (which are considered “distributors” and therefore not responsible for the content they have under offline defamation assessments); they are frequently the doorway of the internet.

And the search engines are large enough to be able to afford the costs and the scale of evaluating removal requests. Demonstrably, Google has been absorbing these costs for the better part of a decade, at least, while their stock value has consistently risen across this period. So concerns about absolving them from the costs of handling defamation are likely minor and irrelevant.

Assisting online attack victims should perhaps be considered the cost of success. The search engines bear responsibility for the policing of the internet by making themselves so very central to people’s online activities. They created this large, public marketplace, so they inherently bear some responsibility for it.

Why should they declare themselves responsible for making the internet faster, or for safeguarding privacy by browbeating webmasters into using SSL (secure sockets layer), or trying to make the internet more secure by flagging or suspending websites for malware — and then turn about to disavow any responsibility at all for defamatory content they index that destroys companies and lives? The omnipresence they’ve created means they must share some responsibility.

The search engines have to employ removal evaluation staff anyway, because they are also receiving many other types of legal removal requests, such as in instances of trademark infringement, copyright infringement and personal privacy issues. There has been something of an imbalance in how the US has provided a high level of immunity around defamatory liability to online distributors/publishers of third-party content, while simultaneously ensuring the interests of big business are represented by making those same types of sites handle copyright infringement claims.

There are also alternative options for addressing the costs, if that is the driving reason for suspending assistance. As I pointed out last year, it should be possible for Silicon Valley companies to set up a commonly supported online reputation clearinghouse that they could all utilize to share the evaluation costs.

Take-down requests could be sent to a single location, evaluated, and then acted upon by the major players in concert with one another. This would potentially save on costs for all of those companies and also reduce some costs for reputation attack victims. Sure, this requires a level of cooperation among big tech companies, but the rewards could be significant. Costs of evaluations of removal requests are not going away.

One attorney I spoke with stated that he would even be happy to pay a fee to Google for submitting removal requests. He acknowledged that there are costs involved for the search engines, and a handling fee might be reasonable — especially if the alternative is to lose any real substantive recourse.

There is a possibility that Google’s abrupt about-face on these requests may open them up to legal liability now, in spite of the CDA protections.

One might argue that Google’s long practice of honoring court-ordered defamation removals was an implicit acknowledgment of responsibility and liability for content presented through search results. Or a claim could be made on the basis of promissory estoppel — that attorneys and individuals have been reasonably assured by long practice that Google will remove content based upon court orders specifying defamatory content, and this abrupt and seemingly arbitrary suspension of that policy is wantonly damaging.

Some of the instances where Google denied take-down requests have happened after victims pursued months or years of litigation to obtain court orders, and they did this with the reasonable expectation that Google would take action. These people are arguably damaged because they based their decisions to litigate on Google’s years of consistent policy.

Even more recently, Melania Trump is involved in a defamation lawsuit, claiming the press and a blogger have made false and damaging statements against her. As things currently stand, it’s conceivable that Mrs. Trump could win her case, but if her defamatory content were replicated on sites like Ripoff Report and elsewhere, then the content could live on, easily accessible via Google search results.

Is it realistic that Trump might be able to change libel laws, and, if so, could it provide greater protections for all individuals or lessened immunity for web companies? It’s purely speculative, but the incoming administration definitely has a conservative philosophy about unfettered speech, and their party is in charge of both the Executive and Legislative branches of government. One has the feeling that they can enact any changes to the law that they might wish. And one can imagine they might be motivated if Mrs. Trump were to find herself balked subsequent to winning her case in court.

Conclusion: Inconclusive, for now

So, how should the online reputation management industry respond to Google’s recent de facto paradigm shift? Will they begin to grant such requests again, with the same level of consistency?

Some types of websites and online services will respond to court-ordered defamation removal requests. I suggest that one first send those court orders to every single site and ISP where defamatory material is specified.

After you’ve gotten as much removed at the website level as possible, then follow up with a submission of remaining URLs to Google, explaining you have attempted to get everything removed but you cannot do anything about the remaining URLs, and plead for them to take those last URLs out of search.

Please let me know if you are successful, and I may post a follow-up report later.

Likewise, if Google later responds, we will try to post an update on this article.

Opinions expressed in this article are those of the guest author and not necessarily Search Engine Land. Staff authors are listed here.